The State Education Department
State Review Officer

 

No.  98-7

 

Application of the BOARD OF EDUCATION OF THE ARLINGTON CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

 

Appearances:
Raymond G. Kuntz, P.C., attorney for petitioner, Jeffrey J. Schiro, Esq., of counsel

Family Advocates, Inc., attorney for respondents, RosaLee Charpentier, Esq., of counsel

DECISION

 

        Petitioner, the Board of Education of the Arlington Central School District, appeals from the decision of an impartial hearing officer which found that petitioners had failed to offer respondents' son an appropriate educational program during the 1996-97 school year, and which ordered petitioner to reimburse respondents for the cost of placing the boy as a day student in an out-of-state private school. The hearing officer denied respondents' request that petitioner also be required to pay for the residential costs for their son's private school placement. The appeal must dismissed.

        I will first address one procedural issue. Respondents did not cross-appeal from the hearing officer's decision denying them the residential portion of the cost of their son's placement in the private school, as they could have done pursuant to 8 NYCRR 279.4 (b). However in their answer to the petition in this appeal, they ask me to "expand the scope of relief awarded by the hearing officer" to include their son's residential fees, as well as the cost of an independent educational evaluation which they obtained for him. I must deny their request. Pursuant to Federal and State regulations, an impartial hearing officer's decision is final and binding upon the parties unless appealed to the State Review Officer (34 CFR 300.509; 8 NYCRR 200.5 [c][11]). Not having appealed from the hearing officer's decision, respondents are bound by that decision.

        Respondents' son is eighteen years old. Respondents were concerned about the boy's speech when he was about two years old. In January, 1985, they had the child evaluated at the St. Francis Hospital, where he was found to have a severe speech articulation problem, as well as a mild to moderate language impairment. Respondents thereafter had speech therapy provided to their son twice per week at the St. Francis Hospital.

        In August, 1985, just prior to his entry into kindergarten, the child was privately evaluated by a psychologist, who reported that the child had earned a verbal IQ score of 86, a performance IQ score of 95, and a full scale IQ score of 89, placing him in the low average range of intelligence. His visual motor integration skills were reported to be delayed by slightly over one year. The psychologist noted that the child had poor fine motor coordination, and recommended that he be evaluated by an occupational therapist. An occupational therapist who assessed the child at the St. Francis Hospital in March, 1986 reported that there were significant delays in his perceptual fine motor development, and mild delays in the development of his gross motor skills. The occupational therapist suggested that the child also had motor planning difficulties, and recommended that the child receive 30 minutes of occupational therapy twice per week. Respondents arranged to have the recommended therapy provided. In June, 1986, the child was evaluated by petitioner's physiatrist, who reported that the child exhibited signs of mild hypotonia, decreased coordination, neurological "soft signs" which are frequently associated with learning disabilities, and hyperactivity. The physiatrist recommended that the child continue to receive speech therapy, and that he receive occupational therapy. When re-tested in November, 1986, the child demonstrated generally above age-level visual perceptual skills.

        The child was referred by his parents to petitioner's CSE in June, 1986. The CSE recommended that he not be classified, but that his progress in a pre-first grade class be monitored during the first marking period of the 1986-87 school year. At the end of the first marking period, the CSE classified the child as learning disabled, and recommended that he receive three hours of resource room services per week and 30 minutes of occupational therapy twice per week. For the 1987-88 school year, the CSE recommended that the child continue to receive resource room services and occupational therapy, and that he have the use of a typewriter or computer while in the first grade. In April, 1988, he reportedly achieved grade equivalent scores of 2.3 for reading, 2.4 for mathematics, and 1.6 for written language (Exhibit 6).

        During the 1988-89 school year, when the child was in the second grade, he continued to receive three hours of resource room services and two sessions of occupational therapy per week. He also received speech/language therapy twice per week. On the Comprehensive Test of Basic Skills (CTBS) he achieved grade equivalent scores of 1.6 vocabulary, 4.6 for reading comprehension, 1.8 for spelling, 2.2 for the mechanics of writing, .9 for written expression, 2.2 for mathematical computation, and 1.9 for mathematical applications. The child reportedly had some difficulty interacting with his peers and respondents arranged for him to be privately counseled. In January, 1989, the child was evaluated by one of petitioner's school psychologists, who reported that he had achieved a verbal IQ score of 87, a performance IQ score of 100, and a full scale IQ score of 92. In May, 1989, petitioner's physiatrist reported that the child still had mild dysfunctions in spatial perception, motor planning, midline crossing and fine motor coordination.

        For the 1989-90 school year, the CSE recommended that the child's resource room services be increased to five hours per week and that he receive group counseling once per week, while continuing to receive speech/language therapy and occupational therapy twice per week. The CSE also recommended that the child be tested in a separate location for school tests. On a test of visual perceptual skills administered to him in November, 1989, the child scored above age expectancy. On the CTBS in April, 1990, respondents' son achieved grade equivalent scores of 2.7 for vocabulary, 2.5 for reading comprehension, 3.1 for spelling, 3.6 for the mechanics of language, 3.4 for language expression, 4.2 for mathematical computation, and 4.1 for mathematical applications. He scored below the statewide reference point on the third grade Pupil Evaluation Program reading test, but above the statewide reference point on the third grade mathematics test.

        The child's educational program for the fourth grade during the 1990-91 school year remained the same, except that his occupational therapy was reduced to once per week. In March, 1991, the child achieved grade equivalent scores of 2.7 for letter-word identification, 4.4 for passage comprehension, 4.1 for mathematical calculation, and 1.4 for writing on the Woodcock Johnson test.

        In July, 1991, the child was privately evaluated by a psychologist who noted that respondents had advised her that that the child had previously been diagnosed as having an attention deficit hyperactivity disorder (ADHD). At the hearing, the private psychologist testified that the child had previously been diagnosed as having an attention deficit disorder (ADD). There is no proof of either diagnosis in the record. However, I note that Exhibit 7 indicates that the child was taking 35 milligrams of Ritalin per day. The psychologist reported that the child’s attentional problems had hindered his work during testing, and that he had difficulty articulating his ideas. The boy achieved a verbal IQ score of 87, a performance IQ score of 88, and a full scale IQ score of 87. On the Wide Range Achievement Test – Revised, his reading (single word reading) skills were reported to be at an end of second grade level, while his spelling skills were reported to be at a middle of second grade level. The boy’s arithmetic skills were reported to be at a beginning of third grade level. On the Gilmore Oral Reading Test – Revised, the child earned grade-equivalent scores of 3.6 for passage decoding and 4.1 for comprehension. The psychologist reported that the child had a large sight word vocabulary, but had not learned sound-symbol relationships. Although the child’s memory skills were generally good, the psychologist reported that his learning was hindered by organizational difficulties. She also reported that the boy had difficulty learning information which was sequential in nature and visualizing whole patterns and details. She noted that the child’s penmanship difficulties were consistent with such problems, which were compounded by his difficulties with attention, organization, and task completion. The psychologist recommended that the child continue to receive language therapy as well as assistance with reading and mathematics.

        For the 1991-92 school year during which the child was enrolled in the fifth grade, the CSE recommended that he receive consultant teacher services (see 8 NYCRR 200.1 [1]) for three hours per week, as well as twice weekly speech/language therapy, and occupational therapy once per week. Counseling was not recommended for him, reportedly because he was receiving private counseling. At the hearing in this proceeding, the child’s mother testified that respondents had also arranged to have the child privately tutored in reading and writing for one hour per week. The CSE also recommended that the child be allowed to use a computer for tests. The child was evaluated by one of petitioner’s school psychologists in December, 1991. He achieved a verbal IQ score of 82, a performance IQ score of 87, and a full scale IQ score of 84.

        In April, 1992, the CSE prepared the child's individualized education program (IEP) for the 1992-93 school year, during which the child was enrolled in the sixth grade in petitioner's middle school. The CSE recommended that the child receive primary instruction for English in a special education class with a 15:1 child to adult ratio. It also recommended that he receive five periods of resource room per week, and that he have the use of a computer on an as needed basis. The IEP indicated that the boy should be tested in a separate location and that test time limits should be extended. The IEP also indicated that the child's organizational and study skills would be improved in the resource room. The CSE did not recommend any related services for the child. In October, 1992, the CSE amended the child's IEP to provide that he would receive social studies and science instruction in special education classes. Later in the school year, a consultant occupational therapist recommended that the child use a laptop computer. The CSE approved the consultant's recommendation. Respondents asserted at the hearing that their son's use of a laptop was limited because the machine was reportedly broken.

        In April, 1993, the CTBS was administered to the child. He achieved grade equivalent scores of 5.3 for reading vocabulary, 5.6 for reading comprehension, 5.3 for mathematical computation, and 5.9 for mathematical computation. His score on the sixth grade Pupil Evaluation Program reading test was below the statewide reference point, despite the fact that the child had received remedial reading instruction during the 1992-93 school year. The child's final grades for the 1992-93 school year were all above 80, except for a 76 for technology.

        For the seventh grade during the 1993-94 school year, the CSE recommended that respondents' son be enrolled in special education classes for English, social studies, and science, and that he receive five periods of resource room services per week. The CSE recommended that he continue to receive the same testing modifications as in the prior school year, but also provided that his answers to test questions could be recorded for him. The minutes of the meeting at which the child's IEP was prepared indicated that "Counseling for social skills should be considered". However, the CSE did not recommend that he be provided with counseling.

        In April, 1994, the child was evaluated by an occupational therapist who reported that the child was generally functional in a classroom setting, but continued to be weak in written expression. She noted that the child relied heavily upon his vision to find the keys on a keyboard, and that his typing speed was irregular and determined by the words he was typing. She recommended that he receive a summer program at home to develop a kinesthetic sense of finger-key association and that she observe him once per month during the 1994-95 school year. The child's CTBS grade equivalent scores in April, 1994, as he neared the end of the seventh grade, were 6.0 for reading vocabulary, 5.1 for reading comprehension, 7.2 and mathematical computation, and 6.1 for mathematical applications. His final grades for the 1993-94 school year were in the 70's.

        For the 1994-95 school year, the CSE recommended that respondents' son receive "part-time special education" for English, social studies, and study skills. At the hearing in this proceeding, the CSE chairperson explained that the child was placed in regular education classes for these subjects, but those classes were co-taught by a special education teacher, who apparently served as a consultant teacher. The inclusion classes ranged in size from 26 to 30 pupils of whom no more than 15 were classified as children with disabilities. The consultant teacher provided supplementary instruction to no more than 15 children in the studies skills class. The child's IEP indicated that he was to receive 40 minutes of occupational therapy per month, and it provided for the testing modifications of special location, extended time limits, having answers recorded, and access to a computer. The CSE meeting minutes which were annexed to the child's IEP indicated that he needed assistance with note taking in class. In January, 1995, the child's occupational therapist reported that the child could get copies of class notes as needed, and that his teacher had indicated that the child's handwriting was adequate if he wasn't rushed. The occupational therapist reported that the child could write faster than he could keyboard, and she recommended that he be encouraged to develop his keyboarding skills.

        In April, 1995 the CTBS was administered to the child. He achieved grade equivalent scores of 6.1 for reading decoding, 4.6 for reading comprehension, 5.3 for mathematical computation, and 6.6 for mathematical applications. In May, 1995, the child's occupational therapist recommended that occupational therapy not be provided to the child during the 1995-96 school year. The child was also re-evaluated by petitioner's school psychologist in April, 1995. He achieved a verbal IQ score of 80, a performance IQ score of 84, and a full scale IQ score of 81. In a report dated August 22, 1995, the school psychologist indicated that the child's emotional difficulties had begun to intrude upon his intellectual functioning. She reported that at times, the child so personalized a task that he refused to perform it. The child's final grades for the eighth grade were 80 for English, 86 for social studies, 76 for science, and 82 for mathematics. He achieved comparable grades for his special subjects such as art, music, and physical education.

        In June 1995, the CSE recommended that for the ninth grade in petitioner's high school, respondents' son be enrolled in regular education classes, but receive supplementary special education instruction in a resource room for five periods per week. No related services were recommended for the child. As initially prepared, the child's IEP failed to provide that he required assistance with note taking in class, and it included annual goals and supporting objectives for English, social studies, science, and mathematics, despite the fact that the CSE had not recommended that he receive primary special education instruction in those subjects (Exhibit 17). The child's IEP was amended to provide that he required note taking assistance, and to delete the annual goals for English, social studies, and science, at a CSE meeting which was held on December 5, 1995. The CSE chairperson testified that the mathematics annual goal should also have been deleted from the amended IEP (Exhibit 22), and had remained on the IEP because of a clerical error. The annual goal for mathematics was to prepare for and pass the Regents Competency Test in mathematics, which the boy achieved in June, 1996. Without that goal, the amended IEP had a single annual goal of improving the child's organizational and study skills. Both versions of the child's IEP indicated that the testing modifications of special location, extended time limit and recorded answers would be used, and that he should have access to a computer.

        During the 1995-96 school year, the child was enrolled in English, global studies, general mathematics, physical science, and keyboarding classes, in addition to a language skills laboratory and a resource room. The language laboratory, which provided remedial assistance in reading and writing, was not a special education class (Transcript, page 131). He reportedly had access to another student's notes for science and social studies (Transcript, page 295). Teacher comments on the child's progress reports (Exhibit 24, 25, 29) indicated that the child's effort had varied during the school year, as had his grades (Exhibit 31). In March, 1996, respondents enrolled their son in a private tutoring program, where he received remedial reading instruction for the remainder of the 1995-96 school year. He achieved final grades of 66 for English, 71 for global studies, 76 for general mathematics and 65 for physical science. In June, 1996, the child passed the Regents Competency Tests in Science and Mathematics. The record reveals that he passed the science test by one point.

        On the CTBS given to him in April, 1996, the child achieved grade equivalent scores of 6.2 for reading vocabulary, 7.7 for reading comprehension, 4.2 for the mechanics of language, 4.4 for language expression, and 5.5 for spelling. The record does not reveal whether the CTBS for mathematics was administered to him.

        On April 18, 1996, the child was re-evaluated by the psychologist who had privately evaluated him in July, 1991. The private psychologist reported that the child had achieved a verbal IQ score of 81, a performance IQ score of 89, and a full scale IQ score of 83. She noted that she had used a different and newer IQ test then she had used in 1991, and that results on the newer test tended to be lower. The psychologist indicated that the child's information processing difficulties and attentional/organizational problems had affected his performance during the IQ testing. On the Wide Range Achievement Test, the child's single word decoding skills were found to be at the fourth grade level, and his spelling skills were reported to be at the third grade level. His mathematics skills were reported to be at the eighth grade level. On the Gilmore Oral Reading Test, he earned grade equivalent scores of 3.6 for passage decoding and 4.1 for comprehension. The private psychologist reported that respondents' son had still not mastered the phonetic rules of English, and that his long-standing difficulties with attention, organization, and sticking with work interfered with his achievement. She further reported that the child did not notice important aspects of situations, plan, organize, or monitor his work. She noted that the child's impulsivity, limited problem-solving ability, and difficulty expressing himself could cause social misunderstandings and problems. She opined that he required an attentive, firm, and consistent environment in which to receive help with reading, writing, arithmetic, study skills and social skills.

        On May 29, 1996, the CSE prepared the boy's IEP for the 1996-97 school year. It recommended that he be enrolled in regular education tenth grade classes, with five periods per week of supplementary special education instruction in a resource room. The sole testing modification on the IEP was that test time limits would be extended to 1.5 the usual limits. The IEP indicated that the boy should have access to a computer, and included a notation that he needed to be encouraged to take notes in global studies and science. The IEP's description of the boy's social development indicated that he needed positive reinforcement, but worked well when he had a positive self-image. Although the CSE did not recommend that the boy receive any special education or related service, such as counseling, to address the boy's social or emotional development, it included an annual goal to improve his social skills and behavior on the IEP. At the hearing, the CSE chairperson testified that all of the boy's teachers would have been made aware of this goal and would have assisted him with it. The IEP also included two annual goals to improve his organizational and study skills and test-taking strategies, as well as a general goal for transitional activities (see 8 NYCRR 200.4 [c][2][v]).

        After receiving the private psychologist's report, respondents began looking at private schools for children with disabilities. The child's mother testified at the hearing that in July, 1996, she and her husband decided to enroll their son in the Forman School, which is located in Litchfield, Connecticut. They signed an enrollment contract on August 5, 1996. Because of the distance between the private school and respondents' house, the boy was enrolled as a residential student, at a total cost of $31,000. On or about September 9, 1996, respondents advised petitioner's high school principal that the boy would attend the Forman School rather than petitioner's high school. In a letter to the CSE chairperson on October 12, 1996, respondents requested that an impartial hearing be held to review the educational program which the CSE had recommended for their son. The CSE reconvened on December 4, 1996, to review the boy's program and respondents' request for tuition reimbursement. It denied their request.

        The hearing in this proceeding began on March 26, 1997, and it continued for seven additional days, ending on October 30, 1997. The impartial hearing officer rendered his decision on January 12, 1998. He noted that the boy's classification as learning disabled was not in dispute. He further noted that the board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12). The hearing officer reviewed the boy's current levels of performance on his IEP, and noted that he continued to have significant deficits in reading, writing, and mathematics. He found that the IEP failed to address those deficits because there were no annual goals for them on the IEP. The hearing officer also challenged the occupational therapist's opinion that the boy did not require occupational therapy during the 1996-97 school year. He also found that the boy's educational progress had been less than could have been expected, and concluded that the boy's IEP for the 1996-97 school year was inadequate.

        A board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7[1993]).

        Having found that the board of education had not met its burden of proof, the hearing officer next considered whether respondents had met their burden of proof in showing that the services which they had obtained for their son at the Forman School were appropriate for the boy, i.e., whether the private school offered an educational program which met his special education needs (Application of a Child with a Disability, Appeal No. 94-29). The hearing officer noted that the child had made progress at the Forman School, and found that it had met his special education needs. However, he further found that there was no basis for concluding that the boy's special education needs were so severe that he required a residential placement to benefit from his education program. With respect to the third criterion for an award of tuition reimbursement, the hearing officer found that equitable considerations supported the parents' claim for an award of tuition reimbursement. The hearing officer limited the award of tuition reimbursement to the cost of a day placement in the Forman School.

        The board of education challenges the hearing officer's finding that its CSE had eliminated annual goals and short-term instructional objectives from the boy's IEP without having sufficient evidence that he had mastered those goals and objectives. The boy's IEP for the 1995-96 school year had initially included annual goals for English, science, social studies, mathematics, study skills and computer education. The hearing officer found that the removal of all of these goals, except for study skills, was unwarranted since the boy continued to have significant deficits in his reading, writing, and mathematics skills. The boy's IEP for the 1996-97 school year listed the results of the CTBS test which he had taken in April, 1996, except for mathematics, for which the 1995 CTBS score was used. The record does not reveal why petitioner failed to use more individualized diagnostic tests than the CTBS to identify the nature and extent of the boy's disability. Nevertheless, the CTBS scores indicated that the boy continued to have serious deficits in his reading (18th percentile) mathematics (12th percentile), and writing (13th percentile) skills. Those percentiles were approximately the same as that of his full scale IQ of 81 (14th percentile). The hearing officer was troubled by the fact that the boy's IEP for the 1996-97 school year did not include any annual goal which directly related to improving the boy's skills in these very basic academic areas, which are the foundation for achieving academic success. Given the boy's IQ and the extent of the deficits in his basic academic skills, I agree with the hearing officer that the boy's IEP for the 1996-97 school year did not include appropriate annual goals and short-term objectives to address his special education needs.

        I further find that the boy's IEP for the 1996-97 school year was inadequate because it did not provide appropriate special education services for him. The only special education instruction which the CSE had recommended for respondents' son was five periods of resource room per week. By definition (see 8 NYCRR 200.1 [hh]), resource room instruction is supplementary instruction designed to support the primary instruction which a student is receiving in his or her regular education classes so that the student can obtain a meaningful benefit from the curricula of those classes. This boy has an IQ near the bottom of the low average range. He has deficits in his language skills which affect his ability to process and organize information, and to express himself in writing. In addition, he appears to have had some social/emotional difficulties which affected his interaction with peers. Petitioner's CSE proposed to address the boy's special education needs by providing additional training in organization and note taking in a resource room. To date, he has shown little ability to independently transfer the skills which he has learned in a resource room in petitioner's district to his content courses.

        Furthermore, petitioner has not explained how it would have addressed the boy's other, significant special education needs by simply providing resource room services. Instead, petitioner contends that the boy's recommended educational program for the 1996-97 school year would have been appropriate for him because of his progress in prior school years as reflected by the boy's scores on the CTBS for the sixth, seventh and eighth grades, as well as his final marks in those grades. Near the end of the sixth grade, the boy had a grade equivalent score of 5.5 for total reading. One year later, his grade equivalent score had increased by only two months to 5.7. The following year, as the boy neared the end of the eighth grade, his total reading score on the CTBS had decreased slightly to 5.4. The boy's total mathematics score improved from 5.6 in the sixth grade to 6.7 in the seventh grade, but fell to 5.8 in the eighth grade. I have also considered the boy's final grades for the sixth, seventh and eighth grades which were satisfactory, but I must note that the boy received primary instruction in English from a special education teacher in the sixth grade. The following year, his special education instruction was increased to three subjects: English, social studies, and science. In the eighth grade, the boy's primary instruction for English, social studies, and study skills was provided by a special education teacher. During the ninth grade, the boy did not receive any primary instruction in special education, but did receive resource room services. Although he appeared to have a three-year gain in his reading comprehension skills, his reading decoding skills improved by only one month on the April, 1996 CTBS. The boy's final marks for the ninth grade were lower than those which he had received when provided with primary special education instruction in prior years. While petitioner appears to attribute the decline in the boy's performance in the ninth grade to the boy's organizational difficulties, I find that it is more than likely to be attributed to the elimination of his primary special education instruction in the ninth grade. Since petitioner proposed to provide a similar program for the tenth grade, I find that petitioner has failed to meet its burden of demonstrating the appropriateness of the educational program which it had offered to provide to respondent's son for the 1996-97 school year.

        Petitioner also challenges the hearing officer's determination that respondents had met their burden of proof with regard to the appropriateness of the educational services provided to their son by the Forman School. It contends that the hearing officer erroneously found that the boy had made educational progress in the Forman School during the 1996-97 school year. Petitioner asserts that the record shows that the boy continued to have attentional and motivational difficulties, and had difficulty completing his homework even under close supervision at the private school. It also asserts that the boy continued to have difficulty writing, and that his Forman School grades were largely subjective. Petitioner argues that the boy's placement in the Forman School, which serves learning disabled students exclusively, was inconsistent with the Federal and State requirement that each child with a disability be educated in the least restrictive environment.

        The Forman School, which is not approved to provide special education to students with disabilities by either the State of Connecticut where it is located, or the New York State Education Department, offers a college preparatory curriculum for students with learning disabilities. It is an accredited high school. During the 1996-97 school year, there were 138 students enrolled in the Foreman school. Respondents' son was enrolled in tenth grade English, algebra, biology, history and music theory classes, as well as language training class. The Academic Dean of the Forman School testified that multisensory instructional techniques were used in each of the boy's classes. Instead of the traditional teacher lecture format, the instruction in the boy's classes was teacher directed and involved the students. Teacher prepared handouts were used, rather than simply having the students read textbooks. The boy's classes ranged from two students for music theory to ten students for history. The boy's language training class provided 1:1 instruction in remedial reading, writing and study skills. The supervisor of the boy's language training teacher testified that specialized techniques, such as the use of an "idea diagram", were employed by the boy's language training teacher to help him prepare an outline for his written essays. He explained that the teacher had initially served as the boy's scribe, but that the teacher was requiring the boy to become more independent as a writer. He also testified that the boy had become capable of independently writing paragraphs.

        In determining what progress the boy made at the private school during the 1996-97 school year, I note that the IEP which the Forman School prepared for him included five long-term goals. His goals were to improve his handwriting, spelling, organizational skills and ability to complete his homework, expository writing skills, and to increase his reading comprehension. I find that those goals were consistent with his special education needs. The pupil progress reports which are in the record (Exhibits 46, 47 and 77) indicate that he generally came to class with a positive attitude, and that his ability to pay attention varied. He continued to have difficulty completing homework, notwithstanding the fact that he had a mandatory two-hour supervised study hall every night. I note that the boy's language training teacher reported that the boy's ability to organize his thoughts and express himself in writing had improved, but remained weak. He indicated that he had worked with the boy to improve his handwriting, organization and expository writing. The boy achieved final grades of 73.67 for history, 91.33 for music theory, 78.00 for language training, 81.33 for algebra, 75.67 for English, and 64.33 for biology (Exhibit 75). Although petitioner argues that the school's grading system was largely subjective, I note that the Academic Dean's testimony described the objective basis for the school's grading system (Transcript, pages 766-767). The Dean conceded that the boy's teachers had some discretion in assigning grades to him (Transcript, page 801). However, I am not persuaded that I should disregard the boy's grades at the private school. Although there are no standardized tests results in the record which could document the boy's progress, I find that respondents have met their burden of proof with respect to the appropriateness of the Forman School's services in meeting the boy's special education needs.

        Respondents' claim for tuition reimbursement is premised upon the Individuals with Disabilities Act (20 USC 1400 et seq.) which requires that children with disabilities be educated in the least restrictive environment (LRE). That requirement must be balanced against the requirement that each child receive an appropriate education (Briggs v. Bd. of Ed. of the State of Connecticut, 889 F. 2d 688 [2d Cir., 1989]). The question to be determined here is whether this boy's placement in a school which provided him with no opportunity for mainstreaming was consistent with LRE requirement. Except for the 1992-93, 1993-94, 1994-95 school years, the boy received all of his primary instruction in regular education classes. During those three years, most of his education was provided in regular education classes. While he has at various times received special education assistance, he continues to have difficulty carrying over what he has learned from special education instruction to the regular education classroom. I recognize that the boy had achieved passing grades while in petitioner's largely regular education program, but the record indicates that he continued to have various special education needs which remained largely unmet. As of the 1996-97 school year, he had reading, writing and mathematics skills which were well below those of his peers. Under the circumstances, I find that the boy's placement as a day student in the Forman School was consistent with the LRE requirement.

        In order to obtain an award of tuition reimbursement, respondents must also show that their claim for reimbursement is supported by equitable consideration (School Committee of the Town of Burlington v. Department of Education, supra). The hearing officer found that their claim was supported by equitable considerations. Petitioner challenges his determination on the grounds that respondents never requested a meeting with the CSE to voice their concerns about their son's educational program for the 1996-97 school year, and they failed to appear at the CSE meeting which was held on December 4, 1996 to review their request for tuition reimbursement.

        The record reveals that respondents have been concerned about their son’s education throughout his school career. During the 1995-96 school year, the boy’s mother met with his resource room teacher and with the school psychologist who was informally counseling the boy. She also spoke to some of the boy’s subject teachers about the difficulty he was having in school. She testified that she believed that she had advised the boy’s resource room teacher about obtaining private tutoring for him. I note that the boy’s father attended the May 29, 1996 CSE meeting at which the boy’s IEP for the 1996-97 school year was prepared. However, respondents did not formally express their dissatisfaction with the boy’s IEP until they wrote a letter to the boy’s principal on or about September 9, 1996. Although it would have been preferable for respondents to make known their dissatisfaction so as to offer the CSE an opportunity to address their concerns, I find that their failure to do so is not a bar to their recovery of tuition.

        Petitioner also objects to the hearing officer’s award of tuition reimbursement on the ground that he allegedly ignored the fact that an employer of one of the parents paid for part of the boy’s tuition at the Foreman School. The boy’s father participated in the IBM Special Care for Children Assistance Program (SCCAP). He testified that SCCAP, which is essentially an insurance benefit for IBM employees, had paid for a portion of the boy’s tuition. While he testified that he would reimburse SCCAP if he obtained an award of tuition reimbursement against petitioner, the boy’s father did not testify that he was legally obligated to do so. He did testify that there was a $50,000. "cap" or ceiling on the SCCAP benefits for his son, which could also be used to pay the costs of college for him. The U.S. Department of Education has opined that public agencies may not require the parents of a child with a disability to use private insurance proceeds to pay for required special education and related services where the parents would incur a financial loss, such as diminution of lifetime benefits (16 EHLR 549). Since that appears to be the case here, I find that petitioner’s contention is without merit.

        I have considered petitioner’s other claims, which I also find to be without merit.

 

        THE APPEAL IS DISMISSED.

 

 

Dated: Albany, New York __________________________
November 16, 1998 FRANK MUŅOZ